Why can't I see the Will?

Over the years, I've been asked by dozens of family members and other interested parties how they can see someone's Will. In each case, it wasn't a general interest question, but a request that I help them obtain a copy of a certain individual's document. Usually, but not always, it was the Will of someone who had passed away. I find it interesting that a lot of people believe they have a right to see a Will just because they want to see it, which of course is not the case.

A Will is a private document. Lawyers advise their clients to keep their original Wills in the safe deposit box at the bank, in a locked safe at home, or in the lawyer's vault. Part of the reason is that they don't want to lose the original Will, but just as importantly, they don't want it to be read by anyone. An individual can choose to show someone his or her Will if they want to, but nobody, including the executor named in the Will, has an enforceable right to see it if the owner doesn't want to show it.

After the owner of the Will (the testator) has passed away, things change, but the Will is still private. If the Will is held at a bank, lawyer's office or trust company, it won't be released to anyone except the executor named in the Will itself. Nor will it be shown to anyone else. There could be an exception where the testator left written instructions to give it to someone else, but that is extremely rare.

The most common reason given for wanting to see someone's Will is that the individual asking the question believes that he or she is a beneficiary of the Will. They want to confirm this, and to find out what they will inherit.

In Alberta, when a Will is probated, the executor is required to provide every beneficiary with a notice by registered mail of what they are going to inherit. If they are inheriting a portion of the residue of the estate, they will receive a copy of the whole Will along with copies of all documents (including inventory of assets and debts) filed with the court. If they are receiving a specific gift, such as a piece of jewelry or a stated amount of cash, they will not be given a copy of the Will, nor are they entitle to receive one. The notices are usually sent out by the lawyer's office.

Not all estates go through probate, so this process does not cover everyone. However, the same rules apply. If you are a residuary beneficiary of an estate, you are entitled to see the entire Will. Otherwise, you're not.

A problem sometimes arises when an executor is overly secretive about the estate. This could signify a problem, but not always. A family member who is positive that he or she was named as a beneficiary in the deceased's Will may be suspicious or upset if the executor refuses to say whether the person is or is not still in the Will. In a case like this, if you want to see the Will, you should consult an estate litigation lawyer to represent you in a formal request for the information you want. Sometimes a court order is required.

There are other reasons for wanting to see what's in a Will. For example, if you are acting for an incapacitated adult under an Enduring Power of Attorney or Personal Directive, you will likely be allowed to see the incapacitated adult's Will while he or she is alive. This is because you will have to make decisions for the incapacitated adult that might be affected by what is in the Will.